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White v. White3/28/2003
rse, does not establish whether property is to be deemed marital or non-marital. The court must make that determination upon consideration of all the factors listed in KRS 403.190. Gifts from one spouse to the other or from one spouse to the marriage are possible, but as with any purported gift, the donative intent and the delivery of a marital gift should appear with reasonable certainty. Although it is clear in this case that Tony intended to use his settlement for the benefit of his family, it does not follow that he intended to give it away. He testified that he did not intend such a gift, and it would be surprising if he had. One does not ordinarily give away one's livelihood. At any rate, the trial court did not clearly err by ruling that Tony's settlement and the realty purchased with it remained his non-marital property notwithstanding the provision in the deeds for his wife's right of survivorship.
Finally, Melissa contends that Tony should be made to pay more of her nearly $7,000.00 attorney fees than the $750.00 the court awarded. Tony has more income than she does—about $1,600.00 per month to $850.00, she claims—and he has substantially more property. Although it is true that a disparity in the parties' resources permits an award of attorney fees, any such award and its size are matters left, according to our Supreme Court, "entirely within the discretion of the [trial] court." Here the trial court felt that a portion of Melissa's legal costs was the result of Tony's intransigence, and it ordered Tony to pay that portion. Otherwise, the court abided by the general American rule that each party to litigation shall be responsible for her own representation. Melissa's and Tony's resources are not so disparate as to make application of the general rule an abuse of the court's broad discretion.
In his cross-appeal, Tony contends that the almost $50,000.00 mortgage debt on the residence, which was incurred for marital purposes including the purchase of Melissa's car, should have been divided evenly. Instead, the court assigned the entire debt to Tony. Tony is correct, of course, that debts are often assigned on the basis of whether they were incurred to purchase marital property and the extent to which the parties participated in undertaking them. Another important factor, however, "is the economic circumstances of the parties bearing on their respective abilities to assume the indebtedness." The court need not divide marital debts evenly. The court's goal must be, in addition to fairness, the economic viability of both new households emerging from the marriage. Here, the trial court obviously gave great weight to the fact that Tony, with his larger income and substantial assets, was in a much better position than was Melissa to shoulder responsibility for this marital debt. We are persuaded that this assignment, though somewhat burdensome to Tony, was not an abuse of the trial court's discretion.
In sum, neither the appeal nor the cross-appeal identifies grounds for relief. The family court's assignment and division of property and debt satisfied neither party's hopes, but it managed, we believe, to be both fair enough and practical enough. Accordingly, we affirm the August 21, 2001, decree of the Franklin Family Court.
ALL CONCUR.
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